[Federal Register Volume 72, Number 64 (Wednesday, April 4, 2007)]
[Rules and Regulations]
[Pages 16271-16275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6265]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 500 and 501

[BOP-1116; AG Order No. 2878-2007]
RIN 1120-AB08


National Security; Prevention of Acts of Violence and Terrorism

AGENCY: Bureau of Prisons, Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule finalizes the interim rules on Special 
Administrative Measures that were published on October 31, 2001 (66 FR 
55062). The previously existing regulations authorized the Bureau of 
Prisons (Bureau), at the direction of the Attorney General, to impose 
special administrative measures with respect to specified inmates, 
based on information provided by senior intelligence or law enforcement 
officials, if determined necessary to prevent the dissemination of 
either classified information that could endanger the national 
security, or of other information that could lead to acts of violence 
and/or terrorism. The interim rule extended the period of time for 
which such special administrative measures may be imposed from 120 days 
to up to one year, and modified the standards for approving extensions 
of such special administrative measures. In addition, where the 
Attorney General has certified that reasonable suspicion exists to 
believe that an inmate may use communications with attorneys (or agents 
traditionally covered by the attorney-client privilege) to further or 
facilitate acts of violence and/or terrorism, the interim rule amended 
the previously existing regulations to provide that the Bureau must 
provide appropriate procedures to monitor or review such communications 
to deter such acts, subject to specific procedural safeguards, to the 
extent permitted under the Constitution and laws of the United States. 
The interim rule also requires the Director of the Bureau of Prisons to 
give written notice to the inmate and attorneys and/or agents before 
monitoring or reviewing any communications as described in this rule. 
The interim rule also provided that the head of each component of the 
Department of Justice that has custody of persons for whom special 
administrative measures are determined to be necessary may exercise the 
same authority to impose such measures as the Director of the Bureau of 
Prisons.

DATES: Effective date: June 4, 2007.

ADDRESSES: Rules Unit, Office of the General Counsel, Bureau of 
Prisons, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of the General 
Counsel, Bureau of Prisons, (202) 307-2105.

SUPPLEMENTARY INFORMATION: This rule finalizes interim rules on Special 
Administrative Measures that were published on October 31, 2001 (66 FR 
55062). These rules are codified at 28 CFR 501.2 (national security) 
and 501.3 (violence and terrorism). We received approximately 5000 
comments in opposition to the rule, which we discuss below.

Section 501.2

    Section 501.2 authorizes the Director of the Bureau, at the 
direction of the Attorney General, to impose special administrative 
measures with respect to a particular inmate that are reasonably 
necessary to prevent disclosure of classified information. These 
procedures may be implemented after written certification by the head 
of a United States intelligence agency that the unauthorized disclosure 
of such information would pose a threat to the national security and 
that there is a danger that the inmate will disclose such information. 
These special administrative measures ordinarily may include housing 
the inmate in special housing units and/or limiting certain privileges, 
including, but not limited to,

[[Page 16272]]

correspondence, visiting, interviews with representatives of the news 
media, and use of the telephone, as is reasonably necessary to prevent 
the disclosure of classified information.
    The interim rule made no change in the substantive standards for 
the imposition of special administrative measures, but changed the 
initial period of time under Sec.  501.2 from a fixed 120-day period to 
a period of time designated by the Director, up to one year. The rule 
also allows the Director to extend the period for the special 
administrative measures for additional one-year periods, based on 
subsequent certifications from the head of an intelligence agency that 
there is a danger that the inmate will disclose classified information 
and that the unauthorized disclosure of such information would pose a 
threat to national security. In addition, this rule provides that the 
subsequent certifications by the head of an intelligence agency may be 
based on the information available to the intelligence agency.

Section 501.3

    Section 501.3 also authorizes the Director of the Bureau, on 
direction of the Attorney General, to impose similar special 
administrative measures (with respect to a particular inmate) that are 
reasonably necessary to protect persons against the risk of death or 
serious bodily injury. These procedures may be implemented after 
written notification from the Attorney General or, at the Attorney 
General's discretion, from the head of a Federal law enforcement or 
intelligence agency, that there is a substantial risk that an inmate's 
communications or contacts with other persons could result in death or 
serious bodily injury to persons, or substantial damage to property 
that would entail the risk of death or serious bodily injury to 
persons.
    The interim rule made no change in the substantive standards for 
the implementation of special administrative measures under Sec.  
501.3(a). However, the interim rule allows the Director, with the 
approval of the Attorney General, to impose special administrative 
measures for a longer period of time, not to exceed one year, in cases 
involving acts of violence and/or terrorism. In addition, the rule 
provides authority for the Director to extend the period for the 
special administrative measures for additional periods, up to one year, 
after receipt of additional notification from the Attorney General or, 
at the Attorney General's discretion, from the head of a Federal law 
enforcement or intelligence agency.
    The interim rule also modified the standard for approving 
extensions of the special administrative measures. The rule provides 
that the subsequent notifications by the Attorney General, or the head 
of the Federal law enforcement or intelligence agency should focus on 
the key factual determination--that is, whether the special 
administrative measures continue to be reasonably necessary, at the 
time of each determination, because there is a substantial risk that an 
inmate's communications or contacts with persons could result in death 
or serious bodily injury to persons, or substantial damage to property 
that would entail the risk of death or serious bodily injury to 
persons.
    Where the Attorney General, or the head of a Federal law 
enforcement or intelligence agency, initially made such a 
determination, then the determination made at each subsequent review 
should not require a de novo review, but only a determination that 
there is a continuing need for the imposition of special administrative 
measures in light of the circumstances.
    In either case, the affected inmate may seek review of any special 
administrative measures imposed pursuant to Sec. Sec.  501.2 or 501.3 
in accordance with paragraph (a) of this section through the 
Administrative Remedy Program, 28 CFR part 542.

Justification for Special Administrative Measures Rules

    Although this rule does not alter the substantive standards for the 
initial imposition of special administrative measures under Sec. Sec.  
501.2 and 501.3, the Bureau's final rule implementing this section in 
1997 devoted a substantial portion of the supplementary information 
accompanying the rule to a discussion of the relevant legal issues. 62 
FR 33730-31. As the U.S. Supreme Court noted in Pell v. Procunier, 417 
U.S. 817, 822-23 (1974), ``a prison inmate retains those First 
Amendment rights that are not inconsistent with his status as an inmate 
or with the legitimate penological objectives of the corrections 
system. * * * An important function of the corrections system is the 
deterrence of crime. * * * Finally, central to all other corrections 
goals is the institutional consideration of internal security within 
the corrections facilities themselves.'' (Emphasis added.)
    This regulation, with its concern for security and protection of 
the public, clearly meets this test. The changes made by this rule 
regarding the length of time and the standards for extension of periods 
of special administrative measures do not alter the fundamental basis 
of the rules that were adopted in 1997. Instead, they more clearly 
focus the provisions for extensions--both the duration of time and the 
standards--on the continuing need for restrictions on a particular 
inmate's ability to communicate with others within or outside the 
detention facility in order to avoid threats to national security or 
risks of terrorism and/or violence.
    In every case, the decisions made with respect to a particular 
inmate will reflect a consideration of the issues at the highest levels 
of the law enforcement and intelligence communities. Where the issue is 
protection of national security or prevention of acts of violence and/
or terrorism, it is appropriate for government officials, at the 
highest level and acting on the basis of their available law 
enforcement and intelligence information, to impose restrictions on an 
inmate's public contacts that may cause or facilitate such acts.

Comments

    We received approximately 5000 comments in opposition to the rule. 
All but 44 comments were variations of two form letters. We also 
received one comment in support of the rule. Other than the single 
supporting comment, all comments expressed identical and/or overlapping 
themes. We discuss the comments and our responses below.

Monitoring of Attorney-Client Communications

    Comment: The provision allowing monitoring of attorney-client 
communications breaches attorney-client privilege and deprives inmates 
of the right to effective assistance of counsel under the Sixth 
Amendment.
    Response: We acknowledge that the Sixth Amendment limits the 
government's ability to monitor conversations between a detainee and 
his or her attorney. Nonetheless, as we noted in the preamble to the 
interim rule, the fact of monitoring by itself does not violate the 
Sixth Amendment right to effective assistance of counsel. Weatherford 
v. Bursey, 429 U.S. 545 (1977). Rather, the propriety of monitoring 
turns on a number of factors, including the purpose for which the 
government undertakes the monitoring, the protections afforded to 
privileged communications, and the extent to which, if at all, the 
monitoring results in information being communicated to prosecutors and 
used at trial against the detainee.

[[Page 16273]]

    In Weatherford, a government informant was present at two meetings 
between a defendant, Bursey, and his attorney during which Bursey and 
the attorney discussed preparations for Bursey's criminal trial. To 
preserve his usefulness as an undercover agent, the informant could not 
reveal that he was working for the government and thus sat through the 
meetings and heard discussions pertaining to Bursey's defense. Bursey 
later brought a suit under 42 U.S.C. 1983, claiming that his Sixth 
Amendment right had been violated. The court of appeals found for 
Bursey, holding that the informant's presence during the attorney-
client meetings necessarily violated Bursey's Sixth Amendment right. 
The Supreme Court reversed, explaining that

[t]he exact contours of the Court of Appeals' per se right-to-
counsel rule are difficult to discern; but as the Court of Appeals 
applied the rule in this case, it would appear that if an undercover 
agent meets with a criminal defendant who is awaiting trial and with 
his attorney and if the forthcoming trial is discussed without the 
agent's revealing his identity, a violation of the defendant's 
constitutional rights has occurred, whatever was the purpose of the 
agent in attending the meeting, whether or not he reported on the 
meeting to his superiors, and whether or not any specific prejudice 
to the defendant's preparation for or conduct of the trial is 
demonstrated or otherwise threatened.
Weatherford, 429 U.S. at 550.

    The Supreme Court expressly rejected such a per se rule and denied 
that having a government agent hear attorney-client communications 
results, without more, in an automatic violation of Sixth Amendment 
rights. Instead, the Court noted that it was significant that the 
government had acted not with the purpose of learning Bursey's defense 
strategy, but rather with the legitimate law enforcement purpose of 
protecting its informant's usefulness. Id. at 557. The Court further 
explained that ``unless [the informant] communicated the substance of 
the Bursey-Wise conversations and thereby created at least a realistic 
possibility of injury to Bursey or benefit to the State, there can be 
no Sixth Amendment violation.'' Id. at 557-58.
    Thus, the Court indicated that the Sixth Amendment analysis 
requires considering the government's purpose in overhearing attorney-
client consultations and whether any information from overheard 
consultations was communicated to the prosecution in a manner that 
prejudiced the defendant.
    Weatherford supports the concept that when the government possesses 
a legitimate law enforcement interest in monitoring detainee-attorney 
conversations, no Sixth Amendment violation occurs so long as 
privileged communications are protected from disclosure and no 
information recovered through monitoring is used by the government in a 
way that deprives a defendant of a fair trial. This rule adheres to 
these standards by permitting monitoring only when the Attorney General 
certifies that reasonable suspicion exists to believe that a particular 
detainee may use communications with attorneys or their agents to 
further or facilitate acts of terrorism, and by establishing a strict 
firewall to ensure that attorney-client communications are not revealed 
to prosecutors.
    Of course, if the government detects communications intended to 
further acts of terrorism (or other illegal acts), those communications 
do not fall within the scope of the attorney-client privilege. That 
privilege affords no protection for communications that further ongoing 
or contemplated illegal acts, including acts of terrorism. See, e.g., 
Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will 
have no help from the law''). The crime-fraud exception applies even if 
the attorney is unaware that his professional services are being sought 
in furtherance of an illegal purpose, see, e.g., United States v. 
Soudan, 812 F.2d 920, 927 (5th Cir. 1986), and even if the attorney 
takes no action to assist the client, see, e.g., In re Grand Jury 
Proceedings, 87 F.3d 377, 382 (9th Cir. 1996). A detainee's efforts to 
use his or her lawyer to plan acts of terrorism simply are not 
protected by the attorney-client privilege.
    This rule carefully and conscientiously balances an inmate's right 
to effective assistance of counsel against the government's 
responsibility to thwart future acts of violence and/or terrorism 
perpetrated with the participation or direction of Federal inmates. In 
those cases where the government has substantial reason to believe that 
an inmate may use communications with attorneys or their agents to 
further or facilitate acts of violence and/or terrorism, the government 
has a responsibility to take reasonable and lawful precautions to 
safeguard the public from those acts.
    Comment: The monitoring provision of the rule violates the First 
Amendment right to petition the government, which includes the right to 
access courts. The commenter argued that the right to access courts 
involves consulting lawyers in confidence, which, according to the 
commenters, is infringed upon by this rule. Some commenters also argued 
that the provision likewise violates the Fifth Amendment by 
circumventing due process, which requires access to courts to 
``challenge unlawful convictions and to seek redress for violations'' 
of constitutional rights. Procunier v. Martinez, 416 U.S. 396, 419 
(1974).
    Response: For the reasons set forth above in our discussion of the 
monitoring provision and attorney-client privilege, we disagree that 
the rule infringes upon inmates' rights to consult lawyers in 
confidence. Inmates retain the same ability to access courts and 
consult lawyers as they had before the date of the Special 
Administrative Measures interim rule. We therefore do not change the 
rule based on these comments.
    Further, no due process rights are infringed. An inmate whose 
conversations with his/her attorney are monitored will enjoy strict 
procedural protections. First, the inmate and attorney will be notified 
that their communications are being monitored (Sec.  501.3(d)(2)). 
Second, a ``privilege team'' will conduct the monitoring and will be 
separated by a firewall from the personnel responsible for prosecuting 
the inmate (Sec.  501.3 (d)(3)). Third, the privilege team may disclose 
information only with the prior approval of a Federal judge or where 
acts of violence and/or terrorism are imminent (Sec.  501.3(d)(3)). The 
rule carefully balances inmates' need to communicate with their 
attorneys against the United States' need to prevent future acts of 
violence and/or terrorism.
    Comment: The monitoring provision in the rule violates the Fourth 
Amendment and Federal wiretapping statutes (18 U.S.C. 2510-2522). 
Commenters posited that before the government can intercept oral 
communications, it must demonstrate to a Federal judge probable cause 
to believe both that a particular individual is committing a crime, and 
that the individual will be communicating about that crime. 18 U.S.C. 
2518(3).
    Response: Title 18, Sec.  2518(7) of the United States Code allows 
an exception to the court order requirement upon the Attorney General's 
designee's determination that an emergency situation exists that 
involves immediate danger of death or serious physical injury to any 
person, or conspiratorial activities threatening the national security 
interest. Section 2518(7), (a)(i) and (a)(ii). Therefore, if the 
Attorney General so authorizes, and if, according to Sec.  2518(7)(b), 
there are grounds upon which a court order could reasonably have been 
granted to allow interception of communications, privilege teams as 
authorized by the Attorney General may monitor attorney-client 
communications as provided for in this rule.

[[Page 16274]]

    We note that only persons held under SAM restrictions for acts of 
violence or terrorism, where lives are directly at risk, may 
potentially be subjected to monitoring of their attorney-client 
conversations. Even then, such attorney-client monitoring will be 
resorted to only after the Attorney General has made a specific 
determination that it is likely that attorney-client communications 
will be used to convey improper messages to or from the SAM restrictee. 
Since the effective date of the interim rule on October 30, 2001, this 
provision has been invoked only once, after the government obtained 
specific evidence revealing that the attorney had previously misused 
the attorney-client privilege in order to convey improper messages to 
and from her client. In other words, the Attorney General determined 
that the situation involved ``immediate danger of death or serious 
physical injury to any person, or conspiratorial activities threatening 
the national security interest,'' under 18 U.S.C. 2518(7).
    As has been recognized by the United States Supreme Court (see our 
response to the comment above, regarding the Sixth Amendment), the 
Sixth Amendment does not protect an attorney's communications with a 
client that are made to further the client's ongoing or contemplated 
criminal acts. Such communications do not assist in the preparation of 
a client's defense, and, therefore, are not legally privileged.
    Still, before such a SAM restriction may be imposed, the Attorney 
General must make a specific determination that attorney-client 
communications will be used to circumvent the purpose of the SAM, that 
is, to pass information that might reasonably lead to acts of violence 
or terrorism resulting in death or serious bodily injury, or cause 
property damage that would lead to the infliction of death or serious 
bodily injury. Even when attorney-client communications are to be 
monitored for the purposes of the SAM, these communications remain 
subject to the attorney-client privilege to the extent recognized under 
applicable law.
    Comment: The monitoring provision is too broad in that it applies 
unjustly to pretrial inmates, immigration violators, witnesses, and 
others in Federal (both Bureau of Prisons and non-Bureau) custody.
    Response: Before this rulemaking, Sec. Sec.  501.2 and 501.3 
covered only inmates in Bureau of Prisons custody. However, there are 
instances when a person is held in the custody of other officials of 
the Department of Justice (for example, the Director of the United 
States Marshals Service). To ensure consistent application of these 
provisions relating to special administrative measures in those 
circumstances where such restrictions are necessary, this rule 
clarifies that the appropriate officials of the Department of Justice 
having custody of persons for whom special administrative measures are 
required may exercise the same authorities as the Director of the 
Bureau of Prisons and the Warden. In such cases, the persons upon whom 
the special administrative measures are imposed must fall within the 
regulatory definition of ``inmate'' at Sec.  500.1.
    Previously, the interim rule identified, as an example of an 
official of the Department of Justice who could exercise the same 
authorities as the Director of the Bureau of Prisons and the Warden, 
the Commissioner of the Immigration and Naturalization Service (INS). 
See 66 FR 55064 (Applicability to All Persons in Custody Under the 
Authority of the Attorney General). On March 1, 2003, however, the INS 
ceased to exist, and its functions were transferred to the Department 
of Homeland Security (DHS) pursuant to the Homeland Security Act of 
2002 (HSA), Pub. L. No. 107-296, 116 Stat. 2135. Section 441 of the HSA 
transferred to DHS all functions of the detention and removal program 
previously under the INS Commissioner. The Secretary of Homeland 
Security, via Delegation No. 7030, delegated all the authority vested 
in section 441 of the HSA to the Immigration and Customs Enforcement 
(ICE), a component of DHS. Accordingly, the detention authority 
previously exercised by the INS Commissioner now rests with ICE. Given 
that ICE detainees may be housed in Bureau facilities or Bureau 
contract facilities, this rule would apply to those inmates.
    Inmates convicted of Federal crimes, and many others in custody at 
Bureau facilities or Bureau contract facilities, such as pretrial 
inmates, witnesses, and immigration violators, have equal potential to 
attempt to perpetrate acts of violence and/or terrorism and/or acts 
that threaten national security. As discussed above and in the preamble 
to the interim rule (66 FR 55062), neither the special administrative 
measures previously authorized by this rule nor the monitoring 
provision currently authorized by this rule will be imposed 
arbitrarily. The Attorney General will carefully and systematically 
review each case and the potential threats before imposing special 
administrative measures or monitoring attorney-client communications.

Regarding ``Vagueness'' of the Rule

    According to the commenters, the rule fails to
    1. Detail the Administrative Remedies available if inmates oppose 
Special Administrative Measures (SAM). The Administrative Remedies 
available, which are the same for any issue an inmate wishes to pursue 
with the Bureau, are discussed in 28 CFR part 542.
    2. Detail SAM conditions (how long confined to cell, program 
participation, exercise, recreation, training, association with other 
inmates). We do not detail SAM conditions in this rule because each 
case varies with the particular security needs of the inmate in 
question.
    3. Define the ``substantial standards'' for imposing SAM.
    4. Define what constitutes ``reasonable suspicion'' of terrorist 
activity which will prompt the Attorney General to monitor attorney-
client communications.
    For items 3 and 4, as we note above, we do not detail ``substantial 
standards'' or what will prompt monitoring of attorney-client 
communications because each case varies with the particular security 
concerns raised by each situation. In general, however, the Attorney 
General will determine that SAMs are necessary in light of clear 
evidence that communication or contact with members of the public could 
result in death or serious bodily injury or damage to property, as 
stated in the rule. Generally, this will be shown through prior acts of 
violence or terrorism and evidence of a continuing threat due to 
contacts with members of the public who may contribute to or undertake 
acts of violence or terrorism.
    5. Define ``acts of violence or terrorism.''
    The United States Code, Title 18, 2332b, describes ``[a]cts of 
terrorism transcending national boundaries.'' In particular, the 
``Federal crime of terrorism'' is defined at length in subsection 
(g)(5). As such, we need not reiterate that definition in the rule 
text.

Regulatory Certifications

    The Department has determined that this rule is a significant 
regulatory action for the purpose of Executive Order 12866, and 
accordingly this rule has been reviewed by the Office of Management and 
Budget.
    The Department certifies, for the purpose of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), that this rule will not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Act.

[[Page 16275]]

Because this rule pertains to the management of offenders committed to 
the custody of the Department of Justice, its economic impact is 
limited to the use of appropriated funds.
    This rule will not have substantial direct effects on the states, 
the relationship between the national government and the states, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, in accordance with Executive Order 13132, it is 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

List of Subjects in 28 CFR Parts 500 and 501

    Prisoners.

0
Accordingly, under rulemaking authority vested in the Attorney General 
in 5 U.S.C. 552(a), we adopt as final the interim rule published on 
October 31, 2001, at 66 FR 55062, without change.

    Dated: March 29, 2007.
Alberto R. Gonzales,
Attorney General.
 [FR Doc. E7-6265 Filed 4-3-07; 8:45 am]
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